Ibrahim v. U.S. Dep't of Homeland Sec.

• Decision Date: 30 August 2016
• Docket Number: Nos. 14–16161,14–17272,s. 14–16161
• Citation: 835 F.3d 1048
• Parties: Dr. Rahinah Ibrahim, an individual, Plaintiff–Appellant, v. U.S. Department of Homeland Security; Jeh Johnson,in his official capacity as the Secretary of the Department of Homeland Security; Terrorist Screening Center; Christopher M. Piehota, in his official capacity as Director of the Terrorist Screening Center; Federal Bureau of Investigation; James Comey, in his official capacity as Director of the Federal Bureau of Investigation; Loretta E. Lynch, Attorney General, in her official capacity as Attorney General; Andrew G. McCabe, in his official capacity as Executive Assistant Director of the FBI's National Security Branch; National Counterterrorism Center; Nicholas Rasmussen, in his official capacity as Director of the National Counterterrorism Center; Department of State; John Kerry, in his official capacity as Secretary of State; United States of America, Defendant–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

835 F.3d 1048

Dr. Rahinah Ibrahim, an individual, Plaintiff–Appellant,

v.U.S. Department of Homeland Security; Jeh Johnson,^* in his official capacity as the Secretary of the Department of Homeland Security; Terrorist Screening Center; Christopher M. Piehota, in his official capacity as Director of the Terrorist Screening Center; Federal Bureau of Investigation; James Comey, in his official capacity as Director of the Federal Bureau of Investigation; Loretta E. Lynch, Attorney General, in her official capacity as Attorney General; Andrew G. McCabe, in his official capacity as Executive Assistant Director of the FBI's National Security Branch; National Counterterrorism Center; Nicholas Rasmussen, in his official capacity as Director of the National Counterterrorism Center; Department of State; John Kerry, in his official capacity as Secretary of State; United States of America, Defendant–Appellees.

Nos. 14–16161

14–17272

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 14, 2016 San Francisco, California

Filed August 30, 2016

Marwa Elzankaly (argued), Jennifer Murakami, Ruby Kazi, Christine Peek, Elizabeth Pipkin, and James McManis, McManis Faulkner, San Jose, California, for Plaintiff–Appellant.

Joshua Waldman (argued) and Sharon Swingle, Attorneys, Appellate Staff; Melinda Haag, United States Attorney; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C., for Defendants–Appellees.

Chet A. Kronenberg and JoAnne S. Jennings, Simpson Thacher & Bartlett LLP, Los Angeles, California, for Amici Curiae American Civil Liberties Union of California, Asian Americans Advancing Justice–Asian Law Caucus, Asian Americans Advancing Justice–Los Angeles, Center for Constitutional Rights, Electronic Frontier Foundation, and National Immigration Law Center.

Before: Richard R. Clifton and Sandra S. Ikuta, Circuit Judges, and Royce C. Lamberth,^*** Senior District Judge.

OPINION

LAMBERTH, Senior District Judge:

Plaintiff–Appellant Dr. Rahinah Ibrahim appeals the district court's award of attorney's fees and expenses pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412

and the Supreme Court's decision in Hensley v. Eckerhart , 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). She contends the district court incorrectly found that the government had not acted in bad faith under EAJA section 2412(b) and therefore erred by declining to award market-rate fees. She further argues the district court erred by finding that the government's conduct was substantially justified under EAJA section 2412(d)(1)(A) on discrete issues and at discrete stages of the litigation, rather than making a single determination on the case as a whole. Finally, she challenges the district court's striking of her objections to a special master's report on her claimed expenses. We have jurisdiction under 28 U.S.C. § 1291.

In light of the Supreme Court's decision in Commissioner, INS v. Jean , 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990)

, we hold the district court erred by making multiple substantial justification determinations and accordingly reverse. We also reverse the district court's various reductions imposed on Ibrahim's eligible fees arising from its incorrect substantial justification analysis.

We however affirm the district court's bad faith findings as well as its relatedness findings under Hensley v. Eckerhart , 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)

. We also affirm the district court's striking of Ibrahim's objections to the special master's report on expenses.

I.

Fee disputes, the Supreme Court has warned, “should not result in a second major litigation.” Hensley , 461 U.S. at 437, 103 S.Ct. 1933

. But, unsurprisingly, they sometimes do, and the instant case is one such example.

In January 2006, Ibrahim commenced this action seeking monetary and equitable relief against various state and federal officials alleging 42 U.S.C. § 1983

claims, state law tort claims, and constitutional claims based on her inclusion in the government's terrorist databases, including the No–Fly List. After two dismissals and subsequent reversals and remands by this Court, Ibrahim v. Dep't of Homeland Sec. , 538 F.3d 1250 (9th Cir. 2008)

(“Ibrahim I ”), Ibrahim v. Dep't of Homeland Sec. , 669 F.3d 983 (9th Cir. 2012) (“Ibrahim II ”), the district court held a week-long bench trial.¹

The district court concluded that Ibrahim had been improperly placed within the government's databases.² Specifically, it found the FBI agent who nominated Ibrahim to the government watchlists incorrectly filled out the nomination form. As a result, Ibrahim was placed on the No–Fly List and another terrorist screening watchlist, rather than the lists on which the FBI agent had intended she be placed. Id. Accordingly, the court below ruled in favor of Ibrahim on her procedural due process claim, concluding the government's nomination error involved a “conceded, proven, undeniable, and serious error by the government.” Although Ibrahim had been removed from the No–Fly List in early 2005, the government was ordered to remove any information contained in its databases associated with the 2004 nomination form, including those databases the FBI agent had intended Ibrahim be placed on, because the nomination form had been incorrectly filled out. It also ordered the government to affirmatively inform Ibrahim she was no longer on the No–Fly List because the government's Travel Redress Inquiry Plan—the only means by which an individual may challenge their suspected placement on the No–Fly List—failed to affirmatively disclose whether she had indeed been placed on the list incorrectly and whether she had been removed as a result.

The district court also granted unasked-for relief under our now-vacated precedent in Din v. Kerry , 718 F.3d 856, 863 (9th Cir. 2013)

, vacated , ––– U.S. ––––, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015) by ordering the government to identify the specific subsection under section 212(a)(3)(B) of the Immigration and Nationality Act that rendered Ibrahim ineligible for a visa in 2009 and 2013. Lastly, on additional independent grounds, the district court granted further relief by finding that the consular officer who denied Ibrahim her visa erred in indicating she could not apply for a discretionary waiver of her ineligibility. The district court ordered the government to permit such a waiver application.

The district court did not reach the remainder of Ibrahim's other claims which included her First Amendment, substantive due process, equal protection, and Administrative Procedure Act claims because, in its view, “even if successful, [they] would not lead to any greater relief than already ordered.”

Thereafter, the parties and the court engaged in a lengthy and contentious fee dispute. In total, Ibrahim sought $3,630,057.50 in market-rate attorney's fees and $293,860.18 in expenses. Adopting the recommendations of a special master, the district court ultimately awarded Ibrahim $419,987.36 in fees and $34,768.71 in costs and expenses. Ibrahim challenges both the underlying legal framework the district court utilized to determine the fees she was eligible to recover, as well as the district court's adoption of various reductions applied to those eligible fees by the special master.

II.

We begin with the district court's application of the EAJA.

Congress passed the EAJA “to eliminate for the average person the financial disincentive to challenge unreasonable governmental actions.” Jean , 496 U.S. at 163, 110 S.Ct. 2316

. To that end, the EAJA permits a “prevailing party” to recover fees and other expenses from the government unless the government demonstrates that its position was “substantially justified.”³ 28 U.S.C. § 2412(d)(1)(A) ; Thangaraja v. Gonzales , 428 F.3d 870, 874 (9th Cir. 2005) (quoting Gonzales v. Free Speech Coal. , 408 F.3d 613, 618 (9th Cir. 2005) ). The EAJA limits attorney's fees to “the prevailing market rates for the kind and quality of the services furnished” but, subject to exception, does not permit an award in excess of $125 per hour. 28 U.S.C. § 2412(d)(2)(A). One such exception to that cap applies where the court finds the government acted in bad faith. Rodriguez v. United States , 542 F.3d 704, 709 (9th Cir. 2008).

After determining Ibrahim was a prevailing party, the court below found that the government was substantially justified respecting its pre-Ibrahim II

standing arguments, its defense against Ibrahim's visa-related claims, and its various privilege assertions. It disallowed fees associated with those issues. It found the government's conduct otherwise was not justified.

It further ruled that the government had not acted in bad faith, and with one exception not relevant here, imposed the EAJA's hourly cap to Ibrahim's fees.

Ibrahim contends these findings were erroneous. We address each in turn.

A.

We review a district court's substantial justification determination for abuse of discretion. Gonzales , 408 F.3d at 618

. We review its interpretation of the EAJA de novo. Edwards v. McMahon , 834 F.2d 796, 801 (9th Cir. 1987).

The government's “position” when considered within the EAJA context includes both the government's litigation position as well as the “action or failure to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(1)(B)

. Hence, we have often articulated the substantial justification test as encompassing two lines of inquiry: one directed towards the government's original action, and the other towards the government's litigation position defending that action. See, e.g. , Gutierrez v. Barnhart , 274 F.3d 1255, 1259 (9th Cir. 2001). But it remains true that the test is an inclusive one; it is the government's position “as a whole” that must have “a reasonable basis in fact and law.” Id. at 1261.⁴

Citing our decisions in Shafer v. Astrue , 518 F.3d 1067, 1071 (9th Cir. 2008)

, and Li v....